The Law.Reviewed by Laughlin McDonald
Vol. 11, No. 5, 1989, pp. 21-23
Whose Votes Count? Affirmative Action and Minority Voting Rights by Abigail M. Thernstrom (Cambridge: Harvard University Press, 1987. 316 pp. $25. Paperback edition, 1989, $10.95.)
The Voting Rights Act of 1965 has had a profound impact on minority political participation in the South, and increasingly in the nation as a whole. In some jurisdictions registration and turnout of minorities are now equal to those of whites, while the number of minorities elected to office-not simply blacks in the South but Hispanics, Asians, and Native Americans in the North and West-has grown steadily each year. Significant disparities remain but this progress is encouraging, representing as it does the growing fulfillment of the long deferred promises of the Fourteenth and Fifteenth amendments, as well as an increasing national consensus in support of minority political participation.
The Act has always had its critics, of course, but they were usually from the expected quarters. They were mainly disgruntled Southern solons who complained that the legislation was punitive and regionally based, whites whose political and economic control was threatened by voting reforms and those who supported racial segregation and "the Southern way of life."
Now, ironically, comes Abigail Thernstrom, not a Southern malcontent but a Senior Research Associate at the Gordon Public Policy Center at Brandeis University. Armed with a grant from the prestigious Twentieth Century Fund and the new conservative's hostility to affirmative action and race-conscious remedies for civil rights violations, she argues in her book, Whose Votes Count?, that the Voting Rights Act has been transformed, wrongly and dangerously, from a law whose "single aim" was to remove blatantly discriminatory barriers to registration and voting into "an instrument for affirmative action...to promote the election of blacks to public office." She is particularly critical of single member districts, a form of neighborhood or community voting, which she sees as basically a scheme to achieve proportional representation and unfairly protect minority candidates from white competition.
The Supreme Court and Congress disagree with Thernstrom that the Act was concerned only with vote denial. Congress was certainly concerned with the difficulties blacks had in registering, but it was also
Page 22concerned with practices that could dilute the effectiveness of a ballot actually cast.
Congress knew that prior voting rights laws had failed in part because local jurisdictions could always think of new ways to discriminate and stay one step ahead of the federal courts. As soon as a court invalidated an objectionable practice a jurisdiction could, and generally did, simply enact another to take its place. For that reason Congress not only banned such discriminatory practices as the literacy tests for registration, but it provided in Section 5 of the Act that certain "covered" jurisdictions had to preclear any new voting laws with federal officials and demonstrate that they did not have a discriminatory purpose or effect.
In the Supreme Court's first decision construing the scope of Section 5, in 1969, Allen v. State Board of Elections, a majority of the justices concluded on the basis of the legislative history that Congress intended to require preclearance of all laws enacted by covered jurisdictions which altered election practices in even a minor way, including the adoption of procedures such as at-large elections that could dilute minority voting strength. The Court has applied this standard in every subsequent preclearance case.
Moreover, when Congress extended preclearance in 1970, 1975 and 1982, it discussed and expressly approved the Supreme Court's interpretation of Section 5. Had Congress felt that the Voting Rights Act had the sole and narrow purpose of eliminating only discrimination in registration, it could have said so and taken corrective action. But it did not.
In concluding her discussion of Allen, Thernstrom does an anomalous and abrupt about face. While she professes not to like its prohibition on vote dilution, she concedes that Allen "was both correct and inevitable."
Thernstrom is highly critical of the 1982 amendment of Section 2 of the Act in which Congress provided that voting practices, whether or not subject to preclearance and whether or not purposefully discriminatory, are unlawful if they "result" in discrimination. The amendment passed, she says, not on its own merits but because Congress was "slapdash" and "inattentive." The press was guilty of "distortions" and reported only "partial truths." The real villains, though, were the civil rights activists who supported the "result" standard. They had a "self-proclaimed moral superiority." They hewed "to a hard line." They were "diehards." They had set out merely "to peddle a product."
Arrayed against these forces of Congressional, communications media, and civil rights sloth and zealotry was a stable of academics collected by Senator Orrin Hatch to testify at the Senate hearings. According to Thernstrom, they were "distinguished...a balanced and impressive group." But the "deck was stacked so mightily against" them and against Hatch, that their warning went unheeded that if the result standard were enacted single-member districts would spread "like a blight across the nation."
The reason Section 2 was amended, and it is a reason Thernstrom generally ignores, is that the case was fully and fairly made in Congress that race is still a factor in American political life and that the result standard was needed to combat continuing discrimination in the electorate. According to Congress, which carefully considered and repudiated the charge, calling the remedial use of single-member districts in racially polarized jurisdictions a blight was "like saying that it is the doctor's thermometer which causes high fever." Experience has shown, in fact, that single-member districts, and the black electoral success associated with them, tend to break down racial isolation by bringing minorities into the decision-making process. They also tend to make government at all levels more responsive to minority concerns.
At the end of her book Thernstrom again confronts the hard line of new conservatism and again she flinches, effectively answering her own argument that single-member districts are an unfair form of affirmative action.
She conceded that where 'racial politics...dominates the electoral process' and public office is largely reserved for whites, the method of voting should be restructured to promote minority officeholding. Safe black or Hispanic single-member districts hold white racism in check, limiting its influence. And where whites- and often blacks-regard skin color as a qualification for office (in part because no experience suggests otherwise), the election of blacks helps to break both white and black patterns of behavior.
Few civil rights activists would disagree.
Where there is considerable disagreement is in how many jurisdictions are dominated by racial politics. For Thernstrom there are very few. One does not have to be a prophet of racial doom or deny the fact of change, Thernstrom suggests, to appreciate that race is still dynamic in American politics. One should have to be naive to believe that it isn't.
The extent of Thernstrom's naivete shines through in her discussion of South Carolina politics, which she believes is far removed from the racial vulgarities and excesses of other Southern states. South Carolina, she writes, has "an unusual commitment to law and orderly change, stemming perhaps from an aristocratic respect for civility." As evidence of this, she reports that blacks and whites can be seen standing side by side in Charleston markets picking over the local okra, depicting "a life that in significant ways was shared." And, she adds, in 1963 "South Carolina governor Donald Russell held an inaugural barbeque that was attended by both blacks and whites."
Thernstrom would have rendered a more accurate account of the significance of race in South Carolina politics if she had told more about life beyond the imagined intimacies of the okra bin, if she had reported, for example, that Governor Russell, following his inaugural barbeque, became a United States Senator and cast one of eighteen votes in the Senate against the Voting Rights Act of 1965, or that South Carolina led the challenge to the constitutionality of the Act immediately after it was passed, or that modern voting rights cases continue to document extremely high levels of racially polarized voting, or that nearly all of the black elected officials in the state were elected by constituencies in which members of their own race were in the majority. One of the failings of Whose Votes Count? is that, despite being eight years or more in the making, it contains very little original research and relies primarily upon court decisions and interviews, many of which are anonymous and essentially impressionistic.
Thernstrom believes that the ideal electorate is one composed, not of black, brown or white voters as such, but of "a community of citizens." Most civil rights proponents do, too. Thernstrom, however, apparently thinks a community of citizens is a present day reality and that minorities need only look for the protection of their rights to "the political process left substantially to its own devices." I cannot imagine anyone even casually familiar with the protracted struggle for civil rights in this country taking that advice, and therefore this book, very seriously.
LAUGHLIN McDONALD is Director of the Southern Regional Office of the American Civil Liberties Union. Perhaps no other attorney has been responsible for as many redistricting cases. (An abbreviated version of this review appeared in Foundation News, May/June, 1989.)